Supreme Court won't hear Ciavarella appeal

The U.S. Supreme Court has declined to hear the appeal of former Luzerne County Judge Mark A. Ciavarella Jr., according to an order posted Monday morning on the high court’s website.

Ciavarella, jailed for 28 years on corruption charges, has now exhausted all his appeals options. The only thing he and his attorneys can do now is ask the Supreme Court to reconsider its decision, something his attorneys don't plan to do.

The ex-judge’s appeal was a long shot and denial was likely, Ciavarella’s attorneys previously said, since the Supreme Court only hears about 75 of the 10,000 cases each year it is asked to consider.

The court did not give a reason for denying the appeal. Ciavarella case was just listed under a heading of "CERTIORARI DENIED."

“Are we disappointed? Sure we are. But we understand the Supreme Court takes very few cases in the course of the year,” said attorney Al Flora Jr., who represented Ciavarella along with attorney William Ruzzo. “I know it’s very difficult to get cases before the court. We gave it our best effort, and that’s all that could be expected.”

Flora said he sent Ciavarella an email notifying him of the decision. Ciavarella remains jailed at Federal Correctional Institution at Pekin, a medium security facility in Pekin, Ill.

U.S. Attorney Peter J. Smith, whose office prosecuted Ciavarella, said the U.S. Supreme Court's denial of the ex-judge’s appeal validated a solid prosecution.

“We’re very pleased with the Supreme Court decision not to hear his appeal. We thought his case was very well presented and the outcome was appropriate,” Smith said in a telephone call Monday afternoon.

“This was a terrible experience for Luzerne County and the community, but we think the outcome as far as the verdict, sentence and outcome of the appeal are appropriate under all the circumstances.”

While Ciavarella’s direct appeals are over, he can still mount post-conviction appeals with the U.S. District Court, which heard his trial in 2011, Flora said.

But he’d likely be doing so with new attorneys, Flora said.

“For all practical purposes, in terms of filling our obligation, our obligation is complete,” Flora said. “Billy Ruzzo and I did our best to advocate on his behalf. That’s why we stayed on this case from the beginning.’’

A jury convicted Ciavarella in February 2011 on 12 of 39 counts, including racketeering and conspiracy, on allegations he conspired with a former colleague to shutter a county-run juvenile detention center and funnel youths to for-profit detention centers while accepting cash payments.

Ciavarella, 63, and former judge Michael T. Conahan were accused of failing to report $2.1 million paid by Robert K. Mericle, whose construction company built the detention centers in Pittston Township and Butler County, and accused of taking $770,000 in kickbacks from attorney Robert Powell, who co-owned the facilities.

The rules of the Supreme Court detail what happens when it declines to hear an appeal or, as it's legally known, denies a writ of certiorari:

“Whenever the Court denies a petition for a writ of cer­tiorari, the Clerk will prepare, sign, and enter an order to that effect and will notify forthwith counsel of record and the court whose judgment was sought to be reviewed,” the rules say. “The order of denial will not be suspended pending disposition of a petition for rehearing except by order of the Court or a Justice.”

After Ciavarella was convicted at trial in federal court in Scranton, he appealed to the U.S. Third Circuit Court of Appeals. The appeals court declined to overturn the ex-judge’s conviction or sentence in May 2013. Attorneys for the disgraced judge appealed to the nation’s highest court in October.

In a 32-page document filed with the Supreme Court, Ciavarella’s attorneys had listed three reasons why the justices should hear Ciavarella’s case:

> U.S. District Court Judge Edwin M. Kosik, who rejected Ciavarella’s initial plea agreement that called for an 87-month prison sentence and later hammered him with 28 years after a trial, was biased toward Ciavarella as evidenced in letters he wrote to citizens and comments he made to a reporter.

> Ciavarella’s racketeering convictions all relate to a single January 2003 payment by Mericle, which fell outside of the five-year statute of limitation. The attorneys say U.S. District Court and the U.S. Third Circuit Court of Appeals, both of which rejected past appeals on the matter, erred in ruling Ciavarella waived this as an appellate issue because it wasn’t addressed at trial.

> Although a jury acquitted Ciavarella on a majority of the charges, Kosik considered all the alleged crimes for sentencing purposes by using the “preponderance of the evidence” threshold, which doubled the sentencing guidelines Kosik used to form Ciavarella’s punishment.

The Supreme Court’s decision, effectively cementing the fate of Ciavarella, comes at a time a movie about the judicial scandal “Kids for Cash” opens in theatres around the nation.

Ciavarella's projected release date is Dec. 30, 2035, according to the Federal Bureau of Prisons website.

“The consequences for the defendant in this case were severe, but his crimes were severe and the impact on Luzerne County was severe,” Smith said.

After Ciavarella was first charged in January 2009, federal prosecutors continued an ongoing public corruption probe that snared more than 30 people, most of them elected officials. Smith said he hopes all the prosecutions, including Ciavarella’s, made a difference in the community and helped deter corruption.

“We’re always going to hopefully be able to pursue any allegations of corruption. And that’s going to continue,” Smith said. “If there is any change for the better as a result of this case, that will be one good outcome.”

Smith said his office worked closely with the U.S. Solicitor General’s Office to file a response after Ciavarella’s attorney filed an application for an appeal with the Supreme Court.

“We're happy the government prevailed,” Smith said. “The trial team and investigators worked long and hard on this case.”

Since Ciavarella could file post-conviction appeals with lower courts regarding different issues, Smith was reluctant to say the case is over.

“It’s probably premature to say this is the end,” Smith said. “But we’re pleased with the outcome.”

bkalinowski@citizensvoice.com, 570-821-2055 @cvbobkal

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